JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. We take up the appeal for admission and hearing.

2. In view of questions of both facts and law being involved, we admit the appeal and take it up for hearing.

3. Heard learned counsel for the parties.

4. The present challenge has been preferred by the Insurance Company on two-fold grounds. First, there was no negligence on the part of the employer in the demise of the deceased victim, which led to the grant of compensation under the Employees' Compensation Act, 1923 (hereinafter referred to as “the 1923 Act”). It is contended that the aspect of the liability for the death being of a third party vehicle, which was being driven in a rash and negligent manner, has been totally overlooked by the Commissioner in the impugned judgment.

5. Secondly, it is contended that whereas the Minimum Wages Act puts the minimum wages of persons such as the victim, who was a cleaner/“khalasi” of a vehicle, at Rs.7280/- per month, compensation has been calculated on the basis of earning of the said deceased to be Rs.8,000/- per month as wages.

6. It is submitted that the said wages were over-calculated and, as such, the impugned judgment ought to be set aside on such ground as well.

7. Learned counsel for the respondents places reliance on Section 3 of the 1923 Act and contends that third party liability is not a relevant factor in granting compensation under the said statute. Secondly, it is submitted that even apart from the wages, the deceased, as a 'khalasi', was entitled to his daily allowances on account of food etc. as well.

8. Upon careful consideration of the relevant statute, we are of the opinion that there is no scope of any defence on the basis of third party liability in Section 3 of the 1923 Act.

9. The said provision is set out below:

“3. Employer's liability for compensation. - (1) If personal injury is caused to an employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:

Provided that the employer shall not be so liable –

(a) in respect of any injury which does not result in the total or partial disablement of the employee for a period exceeding three days;

(b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to —

(i) the employee having been at the time thereof under the influence of drink or drugs, or

(ii) the wilful disobedience of the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employees, or

(iii) the wilful removal or disregard by the employee of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of employee, 

(2) If an employee employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if an employee, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if an employee whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the contrary is proved, the accident shall be deemed to have arisen out of, and in the course of, the employment:

Provided that if it is proved, -

(a) that an employee whilst